One portent of Progressivism is found in the Liberal Republican movement of the 1870s. Prone to Paris Commune panics, distressed by strikes and labor trouble, such reformers as Charles Francis Adams (descended from John Adams), Francis Amasa Walker (Boston laissez-faire economist and Indian manager), and E. L. Godkin (Anglo-Irish editor of The Nation) concluded that efficient, inexpensive bureaucracy was just the ticket. It could manage questions too important to be left to democratic processes, especially those touching on the lately acquired government-bestowed advantages of big business. (“Efficiency” had a great future before it.) This movement was urban, basically eastern, and closely connected with economic elites (Nancy Cohen, Reconstruction of American Liberalism).

Another tributary into Progressivism—populism—began in opposition to all the above. Populists stated the case for tariff- and debt-ridden farmers in the South and the West. Their key innovation, or deviation from the Jeffersonian-Jacksonian tradition, was the belief that “the powers of government . . . should be expanded,” as their 1892 platform put it. How far this idea actually reached depended on the particular populist, but this new approach brought some of them closer, in method anyway, to the later Progressive movement.

A third source of Progressivism was a university-based intellectual movement whose leading figures included Justice Oliver Wendell Holmes, philosopher John Dewey, economist Thorstein Veblen, and historians James Harvey Robinson and Charles A. Beard. What united them was historicism and cultural organicism (Morton White, Social Thought in America). The ferment amounted to “a pragmatic revolt against formalism, abstraction and deductive methodology in the social sciences” (Wallace Mendelson, Capitalism, Democracy, and the Supreme Court). Darwinism, variously read, and scientism were among their weaponry.

A vaguer force was post-millennial Protestant reform, originally based in Greater New England, but now of national scope. Kicked off center-stage by science, many Protestant clergymen engaged social causes in a distinctly Progressive spirit. All these tendencies, plus an ingrained American penchant toward panic, pointed toward a busy future.

These forces (and perhaps others) converged on certain economic, social, and political problems stemming from America’s rapid industrial growth: the Gilded Age’s blatant corruption and subsidies (embodied in the railroads, their origins, and practices), labor strife, urban poverty, economic concentration, and financial manipulation. (Subtext: no stone unturned, no child left alone, no person unregistered, and no physical entity unregulated.) (See my October Freeman article, “The Gilded Age: A Modest Revision.”)

Progressives were fierce critics of federal courts, which they saw as the bulwark of big business. (This was never exactly untrue.) Their foremost concern was how to sustain the new industrial order while conserving American values and institutions. As they saw it, the main alternatives were: 1) restore competition by various means, including antitrust laws, or 2) accept and closely regulate an economy of large corporations. These conflicting visions constituted a serious fault line within Progressivism.

East versus West Approximates Hamilton versus Jefferson

New Republic editor Herbert Croly tried to bridge the Progressives’ divide by setting Hamiltonian means alongside Jeffersonian ends—a “synthesis” that could not survive the slightest clash with real life. Taking “Jeffersonian” as answering roughly to Plan I (restore competition) and “Hamiltonian” as answering to Plan II (accept and regulate big corporations), we can spot the rough geographical outlines of what were (as much of the literature suggests) two quite different forms of Progressivism.

Self-identified Progressives were concentrated in the GOP. Eastern Progressives proposed to regulate big corporate businesses, whose rise they viewed as inevitable. Thus for the eastern wing of the Republican Party “the problem was not how to remedy the evils of the new finance capitalism. [It was] how to manage the discontent it aroused, particularly in the once-docile middle class.” The eastern Progressive icon, Theodore Roosevelt, “wished to see the American people governed by a liberal oligarchy; he did not want them governing themselves.” By contrast, western Progressives tended to see “big business as an artificial menace to self-government, not merely aided but made possible by a whole system of special privilege” (Walter Karp, Politics of War). This means, in effect, that westerners thought some of the damage could be undone. Western Progressivism owed more to populism; it was “more rural and sectional than nationwide” and “represents, in a sense, the roots of modern American isolationism. [It was] less pacifistic and isolationist than it was nationalist,” but “opposed to imperialism or colonialism or militarism.” Such Progressives rejected American imperial initiatives precisely because of their apparent connections to Wall Street and the British Empire (Richard Hofstadter, The Age of Reform).

Given this political geography, there was considerable overlap between farm spokesmen and these “populist” Progressives. Historian Elizabeth Sanders writes that the farm bloc pursued specific reforms through statutory regulations enacted by Congress and enforceable in the courts, and not through expert commissions and administrative bureaucracies. To that extent, then, they were antibureaucratic. The more developed parts of the Midwest and Pacific coast fell midway between populism and eastern Progressivism, while peripheral western zones and much of the South remained essentially populist.

Further: “[I]t was the periphery that furnished most of the opposition, in both parties, to Wilson’s preparedness efforts, for in this momentous sense . . . the agrarians were not statists: far more than other sections, the periphery opposed war, standing armies, and imperialism” (Sanders, Roots of Reform, italics added). Certainly, these positions ought to count on the antistatist side of the ledger, unless war, militarism, and empire are not causes and instruments of aggravated statism. (President Wilson’s ruthless purge after 1917 of antiwar Democrats has long obscured the antiwar aspects of populism in the South. See Anthony Gaughan, “Woodrow Wilson and the Rise of Militant Interventionism in the South,” Journal of Southern History, November 1999.)

It was not just farmers with whom quasi-Jeffersonian western Progressives identified. Senator William Borah (R., Id.) saw himself as a defender of small business and carried on a two-front war against large corporations and state bureaucracies. A noninterventionist foreign policy completed the package. And somewhat jarringly perhaps, Georgism was the default economic position of many Progressives. This makes sense, however, because Henry George’s reform program, like that of the farm bloc, rejected administrative solutions. (Ransom E. Noble, “Henry George and the Progressive Movement,” American Journal of Economics and Sociology, April 1949.)

Creeping American Statism

There are attempts from time to time to father American statism on Progressivism. This will hardly do. First, union-nationalist theorists like John W. Burgess and Orestes Brownson reveled in the vastness of national sovereignty after 1865. In cases like In re Neagle (1890), the U.S. Supreme Court theorized abstrusely on national sovereignty per square foot. At the level of ideas there was quite a lot of statism about. Second, as legal historian William Novak writes, a steadily rising curve of interfering (“statist”) state and federal legislation runs from the 1870s into the 1920s. This upward trend was across-the-board and predated Progressivism. (“The Legal Origins of the Modern American State,” in Austin Sarat et al., Looking Back at Law’s Century.)

Here is one example. After the biggest western land-grabbers crowded small farmers onto marginal lands, especially in California (see my “The American Land Question,” Freeman, July/August 2009), the cry went up for federal engineers to build colossal dams in the arid West to help small farmers become competitive. These projects reinvented ancient hydraulic despotism, coupling it rhetorically with a Jeffersonian end. (Donald Worcester, Rivers of Empire). Here Veblen’s favorite social class, the engineers, did wondrous works and overcame nature itself over many decades. It was impressive—but hardly chargeable to Progressivism.

Progressivism, Law, and State

Eastern, urban Progressives were committed to efficiency, expertise, regulatory bureaucracy, and scientism. Their program was effectively a political phase of corporate liberalism, of which Teddy Roosevelt, an artificial westerner, and Woodrow Wilson, an ex-southerner, offered somewhat different brands. (Wilson’s corporate liberalism did not wear the Progressive label.)

An important point of historical controversy concerns the relation of big business to Progressive legislation. Gabriel Kolko has argued that many key statutes were prepared by big-business lawyers and contained provisions intended to cartelize industries by restricting competition and discouraging new entrants. Sanders counters that the resistance of the farm bloc and organized labor sometimes kept business from getting exactly what it wanted (Kolko, Triumph of Conservatism; Sanders, 179–182).

The related “capture” thesis holds that, whatever the intention of legislators, the businesses to be regulated will eventually dominate the relevant bureaucracy. American socialist William J. Ghent commented that regulatory bodies were “Irresponsible to both the people and the people’s officials” and “peculiarly liable to the influence of the Big Men” (Our Benevolent Feudalism). In private, businessmen themselves agreed with Ghent.

To the extent that eastern Progressives were able, between 1900 and 1916, to control legislative agendas nationally and in the states, they unleashed the reign of bureaucratic tidy-mindedness. In southern states legislatures fine-tuned racial segregation and classification (George M. Frederickson, White Supremacy: A Comparative Study in American and South African History). In a cross-section of states, legislatures blessed the pseudoscience of eugenics and provided for sterilization of unwanted classes. At the federal level Justice Holmes helped out by finding such laws constitutional. (See Edward Black, War Against the Weak.)

There was also what we might call “departicipation”—a trend that reflected upper- and middle-class WASP panic about the working classes, immigrants, and “unassimilable” races. Instances of departicipation included judicial rules narrowing legal standing, increasing top-down control over juries, and eroding common-law concepts; voter disenfranchisement North and South; city manager regimes with at-large voting in city elections and standing armies of police; and finally, detailed task-management in the workplace, or Taylorism. (On the last, see Kevin A. Carson in the September 2011 Freeman).

In foreign affairs many eastern, corporate-liberal Progressives favored forceful American expansion into overseas markets. If this required empire—and even war to secure the deal—they were up for it.

Progressivism: A Partial Defense

Murray Rothbard famously called World War I the “fulfillment of Progressivism,” a substantially true assertion, if eastern Progressivism is meant. (It was.) One would not wish to defend those Progressives. They gave us the War Industries Board, Prohibition, and much else besides. (Perhaps any war party would have given us some of those.) The war witnessed John Dewey’s endorsement of force as the royal road to progress and Randolph Bourne’s daring escape from Dewey’s instrumentalism and liberal practicality (White, Social Thought in America).

Even western Progressives were a bit mixed. Some pursued bureaucratic solutions at the state level. But on national issues of war and peace, and on the question of empire, western Progressives like Senators Borah and Robert LaFollette (R., Wi.), and U.S. Rep. Jeannette Rankin (R., Mt.) earned their keep. One suspects this is why contemporary conservatives prefer to jam all Progressives into a single category to be dismissed as statist at home and naive abroad—the better to flog their own impossible program of freedom at home and empire abroad.

Progressivism and the New Deal

Progressivism as an outwardly unified (but internally divided) movement effectively ended in the 1920s. American politics limped along, bereft of real ideas. This is normal. Then the Great Depression called forth the New Deal. The ensuing leap into governmental problem-solving wasted the memory of the former days—Novak’s previous 70 years of creeping statism. It would be easy, but inexact, to say that the New Deal continued and consolidated Progressivism—but which one? The first New Deal adopted a rather eastern Progressive program of corporatism and cartelization modeled on World War I legislation. Here was the test of Croly’s Hamilton-Jefferson synthesis, and it drove many relatively Jeffersonian Progressives out of the New Deal. The administration’s later (partial) retreat from corporatism did not bring them back (Otis Graham, Old Progressives and the New Deal).

The argument that equates Progressivism with the New Deal and the New Deal with fascism is also misleading. A little care is needed. Certain New Deal economic policies had definite structural resemblances to those of fascist Italy. The New Deal laid part of the groundwork for a uniquely American fascism, but did not finish the job. More building blocks would be needed. (Anyway, an exceptional people like Americans deserve an exceptional form of fascism—nicer, bigger, better, more efficient, and so on.)

John T. Flynn was one of those Jeffersonian Progressives who turned his back on the New Deal. He also helped launch comparisons between New Deal and fascist economic policy. But more important, he tried to discover what would be required for a completed exercise in American fascism. In As We Go Marching (1944), he developed a set of criteria. Measured by those, America was still only potentially fascist. It might be different in the long run. We didn’t have to take the same branch at every fork in the road. But we might.

Living in the Long Run

Flynn’s checklist for realized fascism was as follows: perpetual public debt, autarchy, socialization of investment, bureaucratic supervision of society, public-works militarism, overseas empire, executive dictatorship, and the institutional changes to make them all work together. Seventy-some years later, we are well along. Flynn was wrong of course about autarchy in the short run. He did not anticipate that one imperial State could become strong enough to force its economic rules on most of the world, while preaching about “free trade.”

Flynn was right, however, about what would hold American fascism together: executive power effectively above the law. (Shelley called monarchy the knot that tied the robber’s bundle.) Long ago, tidy-minded eastern Progressives championed executive power but did not perfect it. Other hands—“liberal” and “conservative”—did that. Today important “conservatives” and Chicago-tinged theorists proclaim executive supremacy a universal blessing. (See, for example, Eric Posner and Adrian Vermeule, The Executive Unbound.)

American Progressives, Sinners, and Republicans

So here we are, trying to find some shade under the twisted tree of Progressivism. There is a little, and if the tree is twisted, that is partly because so many have made it into various things it was not, while imposing a false unity on it. Some of it was bad; but Progressivism cannot take the blame for every bad thing that came along after it was dead. An awful lot’s happened since then, and there is a lot of blame to go around. One could wish for a happier ending.

Reigning politicians were also blackguards, and audacious ones. A “surprising number” of America’s economic movers and shakers hailed from New England. Entrenched Republicans became wholly committed to Henry Clay’s dream of State-assisted industrialization and “paternalism as understood by speculators and subsidy-hunters” (Parrington). Government as fairy godmother could not, however, subsidize everyone: “Governmental gifts go to the largest investments”—a survival of the wiliest under laissez-faire slogans. Here were the men called “Robber Barons” by their critics.

Between 1900 and the 1940s historian Charles A. Beard and popular writers like Matthew Josephson, Gustavus Myers, and John T. Flynn followed this interpretive line. But historical fashions change. World War II taught Americans the virtues of bigness in government and business. The waning Old Right forgot the two-front war against big government and big business once waged by Senator William Borah (R, Id.). The emerging Cold War involved projects sustainable only by large organizations. Beard died in 1948, having sinned by disputing FDR’s foreign policy, and his historical views suffered by association with “isolationism.”

By the 1950s only a few leftover populists like Senator Estes Kefauver of Tennessee kept up Borah’s old fight. Historians Ralph and Muriel Hidy, Hal Bridges, and many others found much to praise in late-nineteenth-century big business. Bridges’s essay “The Robber Baron Concept in American History” (1958) lauded Gilded Age industrialists as constructive wealth creators. In “The Robber Baron Concept and Its Revisionists” (1965), New Left historian Alan Solganick tried to reignite debate, suggesting that Gilded Age capitalists put short-run profit ahead of potential technical advances. In recent history textbooks “Gilded Age” appears but without “Robber Barons.”

Taking up where business-oriented elements of the Old Right left off, classical liberals generally see the Gilded Age and alleged Robber Barons as historically vindicated. Fear that concessions to Gilded Age critics will immediately justify big government as social savior seems to require excuses for past economic malefactors. Still, classical liberals Arthur A. Ekirch, Jr., George Roche III, Wilhelm Röpke, Albert Jay Nock, former Freeman editor Frank Chodorov, and Felix Morley did not wholly reject the Populist-Progressive indictment.

Ironbound Folly

The key growth sector from the mid-nineteenth century on was railroads, no stranger to government subsidies. These proved very profitable for promoters and land speculators. But if railroads revolutionized commercial traffic, creating bigger markets and therefore larger-scale enterprises, by 1880 they looked like massive overinvestments with shaky foundations. America had a transportation system so far ahead of natural migration that railroads had to scare up their own settlers. New lines built solely to block competitors aggravated the overextension. Accidents affecting workers and passengers alike were numerous. The recurring cycle of bankruptcy, reorganization, debt reduction, and renewed promotion with watered stock leads historian Ray Ginger (The Age of Excess) to wonder whether, overall, the average return on railway investment was actually negative.

Railroads’ power to set rates arbitrarily became a major public issue. Senator Thomas Benton of Missouri had argued in the 1850s that if given federal subsidies, railroads must serve as public highways leased to private operating companies and open to all on an equal basis. This was not quite what the public got, but the highway metaphor did return during the great railroad strike of mid-1894 to explain how President Cleveland could send federal troops into Illinois over the governor’s protests.

As noted in my “Civil War and the American Political Economy” (Freeman, April 2011), subsidized railroads pioneered large-scale private bureaucracy under the corporate form and their example promoted the form. All this encouraged further concentration of capital, as had the war itself.

Business Practices and Ethics

Bigger markets and larger enterprises rested on various advantages, almost always political in nature, such as large grants of land (including mineral rights), perpetual franchises and rights of way, control of raw materials, transportation subsidies (railroad and highway construction), superior access to transportation, differential shipping rates, control over distribution, public franchises, charters, licenses, tariffs, direct government subsidies and loans, patents, copyrights, privileged banking, and sundry direct or hidden grants of monopoly, including virtual (regulatory) cartels.

All these levers abounded in the Gilded Age—typically for the right price. Tramway entrepreneur Charles Tyson Yerkes’s open buying of franchises from Chicago aldermen finally provoked support for so-called municipal “socialism.” In addition businessmen engaged in patent wars and constant litigation to harass competitors.

Tariffs drained money from the countryside into industrialists’ coffers. The Tennessee Coal, Iron and Railroad Company, headed by U.S. Rep. Thomas C. Platt (R, NY), managed to benefit from both tariffs and convict labor. Generally, the defeated South succumbed to northern capital: to Hamilton Disston, who bought nearly half of Florida; J. P. Morgan, who reorganized the southern railroad system; and sundry timber companies. Sharecropping (black and white), the crop-lien system, and “reckless destruction” of forests by timber companies typified the new southern economy (Ginger).

Even before 1861, Thomas C. Cochran and William Miller (The Age of Enterprise) write, “New York, New England, and Pennsylvania had gathered up the funds of the nation, had developed financial techniques to manipulate them, and mastered the arts of credit expansion.” After 1865 bankers—much preferring gold to whatever they had previously lent—lobbied for imposed deflation through retirement of Greenbacks. Large federal tariff revenues (about a third of the possible money supply) sat idle in the Treasury contributing to deflation. Money for new enterprises had to come from established financial gatekeepers, who did well through legally-sanctioned fractional-reserve magic and other devices.

Overproduction, Cartels, De-Skilling

The economies of scale made possible by transportation subsidies forced companies to invest more in fixed (physical) capital while trying to keep variable costs (including labor) low. As Andrew Carnegie noted, industrialists had to keep their machinery “running full.” But doing so produced goods unsellable (profitably) at home. U.S. Commissioner of Labor Carroll D. White declared overproduction “a permanent feature of the economy.” Such statements abounded, and farmers’ groups likewise took up the cry. This led from the 1880s forward to much discussion of “over-saving” and “over-production.” Two interim solutions suggested themselves: cartels to restrict production and the reorganization of work itself. Early attempts at cartelization failed for lack of direct State support, and corporations turned to the second plan. If craft skills could be (in effect) built into new machinery, unskilled labor could replace skilled workers at lower costs. This “de-skilling” would reduce workers’ bargaining power, increasing managerial control, and shift a higher proportion of income from added value to the corporation. A third option, overseas economic empire with foreign markets for “surplus” products, was discussed but was as yet premature.

Flynn and the “Brigand Theory of Progress”

Assessing this period in Men of Wealth (1941), John T. Flynn showed a keen grasp both of basic facts and fundamental issues. At bottom he agreed with ex-New Dealer Willis J. Ballinger (By Vote of the People) that America’s financial masters had “systematically misoperated” the economy for almost a century. Flynn could not accept “the brigand theory of progress,” which excused the hurried methods of nineteenth-century capitalists on grounds of their services to long-run productivity. Many were simply “rascals . . . driven by a consuming passion for getting other people’s money.” Commodore Vanderbilt pioneered methods “of inflating the capitalization of railroads, utilities, and corporate enterprises of all sorts.” Vanderbilt, Gould, Fisk, Drew, and others perfected “the mechanisms of exploitation of properties through stock manipulations” with “vast gains that did not come out of the property at all.”

Flynn found fascinating the synergy between bank “money actually created in the act of lending it” (his italics), watered stock, limited liability, holding companies, and new companies launched entirely to provide quick profits to promoters. Government-tainted finance capitalism had begun in Lowell and Boston by 1837, but J. P. Morgan had perfected its destructive capacities by controlling both banks and corporations issuing securities. This long train of abuses related directly to the corporate form: “the mightiest weapon of all.” (As Thurman Arnold [The Folklore of Capitalism] wrote in 1937, “[C]apital came to mean the ability to control bank credits, which had no particular relation to productive property.”)

Flynn saw Rockefeller as fairly honest and innocent of stock manipulation, but on the downside, a forerunner of corporatism and, in this way, of the coming American New Deal fascism. (Corporatism, formal or informal, would not be realized until many decades later.)

Flynn is onto something: the centrality to the Gilded Age of stock gambling and fictitious capital, a circumstance that might well undercut Ludwig von Mises’s claim (reported by Rothbard) that a stock market is a sure sign of a free market. One begins to suspect that stock markets along with powerful government-aided banks and corporations are instead the surest sign of rigged markets. In Flynn’s account, few famous nineteenth-century capitalists come out unscathed; instead, they emerge as money-chasing rascals working just this side of the law—a small feat, given their ability to move the law around as needed, whether through bribery or the partisan, pro-commercial efforts of the average judicial mind, state and federal.

The Rule of Law

Pro-commercial jurisprudence thrived in the industrializing states, while a uniform national commercial code to foster industry and “progress” was normally a special project of the federal (and ideologically federalist) judiciary. Once the Great Barbecue vested sufficient interests (Nock’s “primal distribution” of productive resources), the interests naturally proclaimed a free market, which the judges contrived to define in their favor. Federal courts duly told states that powers they had granted to corporations were now federal rights under the contract clause, forevermore beyond recall. Broadly speaking, the law was malleable, activist, and pro-commercial. Law professors William J. Quirk and R. Randall Bridwell (Abandoned: The Betrayal of the American Middle Class Since World War Two) find the federal judiciary “‘conservative’ of the prerogatives of business and capital, but . . . not ‘conservative’ of the institutional arrangements established by the U.S. Constitution. . . .”

As seen by historian Frank Tariello (The Reconstruction of American Political Ideology), American classical liberalism was (after 1865) an increasingly flabby ideology. Faced with intellectual—and mass—revulsion against the society under construction, liberals joined business in defending existing arrangements, pointing irrelevantly at dangerous foreign communists. Gilded Age liberal reformers, above mere politics, hoped to combine “laissez faire” with efficient new bureaucracies and restrictions on “unreliable” voting blocs.

All That’s Gilded Is Not Gold

Louis Bromfield (A Few Brass Tacks), a late arrival to the Old Right, questioned the alleged genius of America’s Gilded Age industrialists and bankers. Making a great deal of money under “fantastically favorable conditions”—adequate capital, low-cost labor, and resources seized for next to nothing—seemed no great achievement. Arthur Ekirch’s account of the Gilded Age in The Decline of American Liberalism (1955) uses Parrington’s terms, “Preemption, Exploitation, Progress,” and closely follows Parrington’s treatment. While regarding Rockefeller, McCormick, Armour, and Carnegie as genuine producers, George Roche III (The Bewildered Society), a former FEE staff member and later president of Hillsdale College, found much room for complaint in actually existing capitalism. The key was the modern corporation, originating in State power and fostering oversized bureaucracy and mass society. Citing Nock, Roche protested “the unabashed economism which dominates our age” and expressed doubt that “the enmassment of American business is an absolute prerequisite for large-scale production.”

We could just note the Robber Barons’ achievements and move on. But what if their few ideas and many practices had serious systemic consequences? Was there any way out? Progressives—waiting in the wings—believed so, but had conflicting answers. And there is another interesting story, not fully covered by easy fables told by Glenn Beck and Jonah Goldberg.

He writes: “For Joseph Stromberg, antislavery was only ‘the stalking horse for more practical causes.’”  (The “only” is his.)  To claim that people waving moral flags might have hidden motives, he writes, borders on “conspiracy theory.”  Perhaps so, but my point was that when there are important material interests at work, they necessarily enter into an historical explanation.  And some outwardly stainless ideological figures might well have purposes beyond (or alongside) their ideology that warrant historical investigation.

Sandefur proceeds to discuss the causes of a war.  That was not my subject. (Like Lincoln, I was content merely to say, “War came.”) I don’t know whose essay Sandefur read.  Yet he can write: “[F]or Stromberg, antislavery, which wrecked the chances of compromise, was really the work of northern agitators — where have we heard this before? [Not from me; I never discussed compromises] – because capitalists wanted rid of slavery so they could get subsidies and tariffs….” (He then quotes from my third paragraph, the closest he comes to discussing the essay I wrote).  My point was that some Northern capitalists seem to have used antislavery as leverage against southern congressional opponents of subsidies these capitalists wanted (citing Thomas Ferguson).

Sandefur counters that many northern capitalists “appeased” the South, thereby blocking fulfillment of some “Miracle at Philadelphia.” He continues: “But we are to just ignore the massive moneyed interests that supported and perpetuated slavery; no, it was greedy corporate welfareists who made compromise impossible and are thus at fault for the war.”

Colossal Background Fact

For my part, I stated at the outset that:

“Slavery itself was a colossal background fact… the biggest single capital investment in the United States — an enormous material interest uniting millions of people (not just in the South) through ties of interest, commerce, and sentiment.  This interest stood athwart the political-economic ambitions of powerful interests in the northeast.”

Perhaps I am a Beardian; perhaps I am wrong, but I did not ignore slavery as a vast economic interest.  Sandefur is once again debating Civil War causation with unknown opponents.

Sandefur concedes that the Republican Party was not especially libertarian, but counters that “southern Democrats often opposed central banks and subsidized industry” but “only out of an opposition to the libertarian tint of the industrial revolution” (his italics). The Industrial Revolution may be many things, but “libertarian” does not spring first to mind.  (The banking system, land monopoly, tariffs, and patents gave early illiberal impetus to American industrialization.) Sandefur adds that South Carolina Governor James Hammond’s “defense of slavery was rooted in a fundamental hostility to industrial capitalism: wage workers were, he said, worse off with freedom than slaves were without it” (his italics). One supposes, therefore, that no historically specific critique of wage labor (and its conditions) could ever be sound. (This exclusion simplifies historical work enormously.)

Sandefur: “Stromberg tells us that Yankee businessmen were determined to preserve the union for economic gain … and that this ‘calculation’ was ‘made easier’ after they examined the different tariffs offered by the U.S. and C.S.A. governments. He offers no evidence for this; gives us no reason to believe that tariffs were more important to the northern war effort than were antislavery, defense of the union, patriotism,” etc., etc.

Decisive Tariff

“Calculation made easier” summarizes a major finding of historian Philip S. Foner (The New York Merchants and the Irrepressible Conflict [1941]), namely, that tariff schedules were decisive for some influential businessmen – and therefore for key newspaper editors who began calling for war.  (Charles Adams, whom I quoted in the offending sentence, relies on Foner’s work.)  Similarly, Richard Cobden, writing to W. Hargreaves on June 22, 1861, asked, “Has he [Tocqueville, Democracy in America] not accurately anticipated both the fact and the motive of the present attitude of the State of New York?  Is it not commercial gain and mercantile ascendancy which prompt their warlike zeal for the Federal Government?” (John Morley, Life of Richard Cobden [1905], 850.)  (And, yes, Cobden soon became pro-Union on other grounds.)

Sandefur expands on Confederate war measures, etc. — all very interesting, no doubt, but my subject was northern actors precisely because the winners’ economic arrangements endured and expanded.  Wearing his morality on his sleeve, Sandefur shortly says, “This is not to defend the draft, which I consider profoundly immoral.”  Here is a nice libertarian touch to offset the free pass for war that he issues elsewhere.

Sandefur: “From his distorted mass of secondary source quotations, Stromberg concludes that the Republican Party’s ‘definition of laissez faire … would run as follows: open-ended, active federal assistance for connected businesses through tax money, favorable statutes and legal rulings, and other institutional favors, with no corresponding obligation of these businesses toward society or even the State itself. So assisted, businessmen would make big bucks and accumulate capital, thereby greasing the wheels of progress and development.’ (Interesting, that last bit. Does Stromberg think industry does owe an ‘obligation’ toward ‘society or even the State itself’?)”

Red Herrings

Sandefur is running a serious surplus on red herrings.  Short magazine articles do not usually rest on primary sources.  As to his ideological test oath: yes, I do think railroads ought to have conformed to legal conditions attached to subsidies they received from the awful “State” (an institution Sandefur would hardly ever use except for war).  An obligation to society is even plainer: Businesses really shouldn’t lie, cheat, steal, or create externalities.

Further: “Does [Stromberg] oppose ‘favorable statutes and legal rulings,’ by which, the context makes clear, Stromberg means lawful enforcement of contract and property rights?”  Well, contractual relations and property rights are often the very things in dispute. Since legislatures and courts can change both rules and outcomes, actual results may be unfair and exploitative generally but good for those favored.  (Justice Field, who seldom met a land monopolist he didn’t like, seems a case in point.)  So, no, the context does not require Sandefur’s point.

In quasi-religious tone, Sandefur asks: “Is Stromberg a believer in free markets in the first place?” (Emphasis supplied.) In his sense, quite possibly no. And where “first places” are concerned, Sandefur’s own notions of a free market might not pass muster, either.

Diverse Coalition

Sandefur agrees that the Republican Party “was a coalition of groups, from radical abolitionists to racists, who for whatever reason advocated the restriction and ultimate extinction of slavery — which is only the precondition of laissez-faire capitalism.” I merely add that coalitions are commonly rife with economic ends. Certainly there were some honest ideologues and religious zealots who spent the war years bemoaning their relative lack of influence except as useful propagandists.

As for the Gilded Age, etc., Sandefur writes: “Stromberg is anxious to make the case that the union’s victory somehow caused the welfare state and 19th century corporatism.”  Not really. Actually, I believe the war and the victory caused or aggravated a good many nineteenth-century problems, which did not however include the welfare state or corporatism.  (There were still some forks in the road.)  So, no, Lincoln did not “cause” FDR – or Bush II for that matter.

Still, Sandefur allows a “minute element of truth” in this interpretation that is not mine and arrives at an irrelevant comparison: “One might just as well argue that Allied victory in World War II is morally tainted by the subsequent erection of LBJ’s ‘Great Society.’” No again: The tainting involves saturation bombing, atomic bombing, etc., during that war.  LBJ need not appear. But I move along, for Sandefur seems very protective of the warfare state.

After an Olmstead-like tour of the evils of the postwar South (the Klan, etc.), Sandefur finds that “southerners were every bit as effective at grabbing hold of the new order for their own.”  But that’s just it: Grasping ex-planters and rising Snopeses operated in an overall “new order” whose defects were the point of my essay.  Sandefur adds, “The north may have had the Sugar Trust and imperialism in Central America, but the south had peonage, sharecropping, the Colfax Massacre, and Jim Crow” – no doubt, and all these things hardly bothered the new northern owners and creditors.

No Smear

And now we have Sandefur’s final grapes of wrath: “The tactic of smearing the north with whatever bad things came with war or after it, is worse than mere post hoc, ergo propter hoc.”  A realistic account of what northern movers and shakers actually did hardly constitutes a “smear” of anyone.  Nor does the fog of war explain very much away.

Sandefur: “Leaving out any reference to the slave power’s perfidy serves the intentional design to distort and mischaracterize the war as if it was an act of aggression by the north against a freedom-loving south, when in reality, the south was the closest thing to a totalitarian dictatorship America has ever seen, and its eradication was worth the enormous, tragic costs it brought” (emphasis supplied).

I was writing about the political economy created by those who happened to be on the side whose arrangements prevailed. That was enough “perfidy” for one essay.  I was (again) not arguing war causation.  As to my awful “intentional design,” psychologist Nathaniel Branden has complained about “psychologism,” i.e., lecturing people on what their real motives supposedly are. Here indeed is a theory of conspiracy — okay at law, apparently, but wicked when detected in historical work disliked by Sandefur.  There is still nothing touching the essay I wrote.

It has been a merry chase over bellicose hill and causal dale.  Sandefur objects to my account of the northern political economy that came – not accidentally – with the actual war of 1861-1865.  He prefers to discuss the forces and relations of free-standing ideas.  But, alas in the history that actually America had, interests triumphed and honest fanaticism was gone with the wind.  I, on the other hand, really did want to say something about the political-economic triumph of just those interests in a certain period of time.

We may think here of large “forces” at work, each with limits and counter-tendencies. Where slavery is concerned, Americans shirked the job of finding a reasonable solution. Offered one—disunion—some rejected it, after which the blunt instrument of war permitted another solution of sorts. As historian Howard Zinn writes: It was not the moral enormity of slavery but “the antitariff, antibank, anticapitalist aspect of slavery which aroused the united opposition of the only groups in the country with power to make war: the national political leaders and the controllers of the national economy.”

Political scientist Thomas Ferguson believes that the goals of money-driven coalitions explain the greater part of American political history. During the mid-nineteenth century, railroads represented the biggest new business opportunity, provided large-scale government subsidies (state and federal) were available. Northern railroad promoters and land speculators, many based in New England, worked both to get subsidies and remove obstacles. On the removal side, some of them, like John Murray Forbes, donated money to John Brown’s good works in Kansas apparently to put pressure on southern opponents of internal improvements.

The Republican Party platform of May 1860 stated the minimal program of a historical bloc of northeastern financial and manufacturing interests and Midwestern and western farmers. It began on a high note of egalitarian and republican ideology, aired some Free Soil, antislavery grievances, and thudded to rest with some practical matters: protective tariffs, homesteads (good for votes but rather ambiguous), federally funded improvements of rivers and harbors (Great Lakes subsidies), and a Pacific railroad. In addition, the party’s friendliness to central (national) banking was no secret. The Hamiltonian mercantilism of the platform was its central theme, if not quite its only one. Alas for its adherents, they soon found a large bloc of their recent opponents (and potential taxpayers) leaving the Union, beginning with South Carolina in December 1860.

The opposition to northern mercantilism had removed itself from the system. “Why fight to bring it back?” historians Thomas C. Cochran and William Miller ask. Over the Secession Winter of 1860–1861 many northerners asked just that question. Matters were, after all, rather complex. Key New York trading interests were heavily involved with southern cotton—the petroleum of the mid-nineteenth century—and New England manufacturers processed it. If the incoming administration refused to accept secession and used force to retain states allegedly “in rebellion,” war would come. Many agreed that, generally speaking, war was never good for business as a whole. For some months hesitation reigned.

Ready for War

It seems clear that key leaders of the northern “developmental coalition” represented by the Republican Party were ready enough for war, provided other people bore most of the costs. As tax historian Charles Adams writes, “The Wall Street boys and the men of commerce and business were determined to preserve the Union for their economic gains”—a calculation made easier for them after the contrasting U.S. and Confederate tariff schedules were released in early 1861.

With the highest tariff rates at 47 percent (North) and 12 percent (South), a massive shift of English and European trade to Norfolk, Charleston, Mobile, and New Orleans seemed likely. U.S. revenues would plummet, and northern business imagined short-run (or longer) catastrophe. A good many more northern businessmen began to calculate the possible benefits of a war. On cue, hesitating newspapers changed their line. Of course access to the Mississippi River (quite unthreatened in reality), the reluctance of any State apparatus to lose territory, and ideological nationalism played their parts.

War came, and Republican economic operators made the most of it. With so many of their former opponents assembled in another Congress in Montgomery (later Richmond), Republican interest groups conducted what historian Ludwell Johnson calls “a war of economic and political aggrandizement.”

To fund and man the actual military struggle, Congress provided numerous excise taxes, inflationary Greenback currency, bond issues (public debt), an unprecedented income tax, tariffs, and mass conscription. Interestingly, most northern enterprisers doing well off the war (like Mellon, Morgan, Armour, and Gould) paid substitutes and never went near a battle. The costs of the war could indeed be shifted. For interests getting vested under cover of the war, there were also tariffs (dual-use, it seems), banking acts, the Homestead Act (1862), the Contract Labor Law (1864), Pacific (and other) subsidized railroad projects complete with land-jobbing, and of course the inevitable rivers and harbors acts. The resulting concentration of capital, active strikebreaking by federal troops in St. Louis and Louisville, and (fairly typical) 50 percent profit rates on U.S. war contracts round out this pretty picture. Transparent loopholes in the Homestead Act ensured that land speculators and mining, timber, and oil companies got far more land than genuine settlers did. In addition, historian Jeffrey Rogers Hummel notes that the Morrill Act of 1862 granted considerable western land to eastern states partly in support of federal military education (more fodder for organized land-jobbers). Intentionally or otherwise, the Fourteenth Amendment (1868) hastened, as historian Arthur A. Ekirch, Jr., writes, “the triumph of national big business under the gospel of the ‘due process clause.’’’

It follows that a minimal definition of laissez faire as understood by Republicans during and after the war would run as follows: open-ended, active federal assistance for connected businesses through tax money, favorable statutes and legal rulings, and other institutional favors, with no corresponding obligation of these businesses toward society or even the State itself. So assisted, businessmen would make big bucks and accumulate capital, thereby greasing the wheels of progress and development. This was all the common good we need ever expect—a cozy arrangement indeed, despite conflicts and divisions already visible within the Republican machinery.

Historian Clyde Wilson notes that for Republicans “the revolution . . . was the point” and finds it odd that scholars fully informed on wartime and postwar corruption “imply that it mysteriously appeared after Lincoln’s death, and somehow miss the obvious conclusion that it was implicit in the goals of the Lincoln war party.” Lincoln’s first secretary of war, Simon Cameron, Pennsylvania iron manufacturer and Republican political boss, oversaw many a dodgy deal. Lincoln himself knew his associates quite well and joked that at least Cameron “wouldn’t steal a red-hot stove.” Small wonder, then, that Ludwell Johnson finds profiteering and fraud “so pervasive that they seemed to be of the very essence of the Northern war effort.”

Johnson sees northern wartime practice with regard to southern property as a policy of “redeeming the South by stealing it.” Under vague doctrines of “war powers” and the like, the administration quickly moved to confiscate “rebel” property forfeited for withdrawal of “allegiance” owed. In occupied Confederate territory the U.S. government created special tax districts whose funny auctions of “abandoned” property attracted insider bidders with advance information. The New England Emigrant Aid Company—a land company previously active in Kansas, doing business under a philanthropic veneer—set its sights on conquered parts of Florida. Here it would make money while sharing the bounty of New England civilization. Edward Atkinson, an antislavery textile manufacturer from Massachusetts, took an interest in the Florida project, writing to a colleague, “If he [the former slave] refused to work, let him starve and exterminate himself if he will, and so remove the negro question—still we must grow cotton.” (As philanthropy this was perhaps a bit narrow.) And cotton was a hot item—confiscated, stolen, or gotten through trade with the enemy, for which Lincoln personally issued the licenses. Out of $30 million worth of cotton seized under an 1863 law only 10 percent actually reached the U.S. Treasury. Another $70 million in cotton was simply “stolen by Republican appointees,” as Wilson notes.

In any case, the war was not inexpensive. Claudia D. Goldin and Frank D. Lewis estimate direct war costs in terms of expenditures, lost wages, and more at $3,365,846,000 for the North and $3,285,900,000 for the South. In Georgia alone General Sherman guessed that of $100 million in property destroyed by his forces, 80 percent was “simple waste and destruction” and not a matter of military necessity. For the South as a whole, estimated wealth fell between 1861 and 1865 by about 40 percent—not counting the value of slave “property.” Hummel gives a figure of 50,000 for civilian deaths in the South, presumably of all races, genders, and conditions. Of southern white males aged 18 to 45, 18-25 percent had been killed.

Reorganized Production

Counting Reconstruction as a political continuation of the war, we may now survey the political-economic structure yielded by the struggle. Here the old debate about whether the war retarded or accelerated American industrialization is of little interest. Mere questions of productivity (or output per square worker) matter less than how production was reorganized and who benefited from any changes. In Hummel’s view the wartime illusion of prosperity and full employment cannot survive the fact that wages fell, in real terms, by one-third. In the end, he concludes, the war retarded real growth; indeed, there was a waste of roughly five years’ accumulation of wealth. War contracts had not made up for lost southern markets.

In this new economy railroads were both cause and effect. Organized as much for land speculation as for transportation, subsidized railroads gave early signs of having far exceeded demand; in other words, railroads represented massive overinvestment. Yet subsidized transportation was the key lever of the post-1865 American economy. William Appleman Williams writes that the demand for railroad regulation was not socialist, but merely applied “[Adam] Smith’s argument against mercantilist joint-stock companies to the railroad corporations of their own time.” Railroads particularly required large-scale bureaucratic organization. The modern corporate form served them well, and their short-run success strengthened the corporate form. As Peter N. Carroll and David W. Noble observe, the railroad corporation “patterned itself on the Union army, the first major public bureaucracy.”

Along with increased corporate organization came concentration of capital reinforced by the details of wartime contracts and favored by the tax structure. No less a libertarian than Roy A. Childs, Jr., wrote in 1971 that “much of the concentration of economic power which was apparent during the 1870s was the result of massive state aid immediately before, during, and after the Civil War. . . .” Further, in the decades after the war, this led, as Willis J. Ballinger noted in 1946, to an imbalance in favor of savings invested in fixed capital (“oversaving”). (This spawned from the 1880s forward much discussion of “oversaving” and “overproduction,” with overseas economic empire as a proposed solution.)

A New Industrial Order

Wartime corruption was only a small part of the story. It is more important that, as Richard F. Kaufman observes, the Civil War brought about a “new industrial order . . . composed largely of war profiteers and others who grew rich on government contracts . . . and . . . were able to influence the economic reconstruction.” Further, important and persisting capitalist fortunes arose from wartime contracts: “J. P. Morgan, Philip Armour, Clement Studebaker, John Wanamaker, Cornelius Vanderbilt, and the du Ponts had all been government contractors. Andrew Carnegie got rich speculating in bridge and rail construction while assistant to the Assistant Secretary of War in charge of military transport.” If there indeed were Robber Barons, they got their start in the war.

There were various tensions in the Republican developmental bloc. Some New Englanders, for example, favored lower tariffs and even dared hope that party regulars might steal a little less at a time. According to historian Williams, the Radical wing stood for inflationary currency, high tariffs, and holding the southern states as “a new frontier” for Yankee enterprise.

In political scientist Richard Franklin Bensel’s view, a Republican-led northern developmental coalition of capitalists, financiers, and farmers successfully imposed a single market and commercial code on the entire American federation through neomercantilist activism. The war saw the emergence of a powerful new class of financiers in New York City. After 1865 much of their money went into railroads as they worked to remove Greenback currency from circulation from 1870 on. Here they broke with the Radical Republicans. Bankers preferred to control any expansion of credit and wanted their loans repaid in dollars of equal or greater value than those they had lent. Deflation suited them. The Republican capitalist-and-farmer alliance may have lasted as long as it did only because a generous and expanding pension program for Union veterans partly offset what Midwestern and western farmers lost through high tariffs. (A qualified veteran typically got about a third of the average workingman’s wages for a year. Here was America’s first major welfare program.)

Historian Gabriel Kolko notes rapid expansion and accumulation of capital from 1871 to 1899. Because of recurring upper-class panics over labor organization, “violence was used in America more than in any other country that bothered preserving the façade of democracy”—and the violence was always disproportionate. The Civil War had stimulated manufacturing, railroad investment and building, and mining. Big enterprises rested on family alliances and nepotism. As a result, Kolko writes, the idea of social consensus “wholly obscures the real basis of authority in the United States society since the Civil War—law and the threat of repression.” Alas for the members of the ruling class, they so successfully broke “the possibility of opposition [that] they also destroyed as well, social cohesion and community.”

In a polemic written in 1937, Texas historian Walter Prescott Webb made a case for the West and South against the North. Railroads, built only in the North between 1860 and 1875, killed off southern river traffic. The North enjoyed major bounties: high tariffs, Union army pensions (seven-eighths of which went to the North—a way of spending the “surplus” raised by high tariffs), northern ownership of most industrial patents, and finally, the modern corporation as such—with 200 majors in 1937, all based in the North. This financial-capitalist “feudalism” was sustained by the Supreme Court’s dogma of corporate personhood (1885, 1886, 1889). Anticipating Bensel’s analysis by 50 years, Webb noted how Union army pensions ($8 billion, all told) compensated the West for what it lost on the tariff.

Historian C. Vann Woodward notes that, ground down by tariffs and northern business control of most patents, the South remained trapped as an exporter of raw materials. Along with the famous freight-rate differential (which lasted into the 1940s), these levers worked as effectively as the British Board of Trade in reducing the southern economy to colonial status. As Hummel writes, national banking rules “stifled recovery of the South’s credit markets.” Nor was there cash in small denominations. Here Hummel fills in some gaps in Woodward’s argument. (On the orientation of banking law toward the convenience and profit of northeastern financiers, Bensel’s Yankee Leviathan account reinforces Hummel’s Emancipating Slaves, Enslaving Free Men.) Further, Hummel notes, southerners were taxed to pay interest on the national debt, nearly all of which went to northern parties and to fund Union army pensions—29 percent of the federal budget by the mid-’70s. Here again was a net outflow northward, while the same southerners paid state taxes for Confederate pensions. Not surprisingly, railroad bonds issued by Republican governments in the South during Reconstruction had been “the occasion of most political fraud below the Mason-Dixon line.”

It can be argued that in the end agriculture always pays for industrialization. Bensel is quite clear: “The [American] developmental engine left the southern periphery to shoulder almost the entire cost of industrialization. . . . The periphery was drained while the core prospered.” This means that independence was a serious economic option whose advantages for the South Bensel briefly discusses. But as historian Eugene D. Genovese writes, “Since abolition occurred under Northern guns and under the program of a victorious, predatory outside bourgeoisie, instead of under internal bourgeois auspices, the colonial bondage of the economy was preserved, but the South’s political independence was lost.”

Under Republican auspices the federal government asserted complete primacy over economic regulation, while advancing a big-business bloc allied to its party. This was in the essential Federalist tradition. “Liberal reform” of the 1870s was partly rooted in bourgeois panic over imaginary Paris Communes about to arise on our shores. One result was attempts in the North to disenfranchise “unreliable” voting blocs of workers and immigrants. Here were the beginnings of “de-participation”—the conscious project of removing the people from popular government in favor of permanent bureaucratic management intended to be both effective and inexpensive. Here was America’s answer to Benthamism. Our troubles did not begin (or end) with the Progressive Era.

So here is a very good book of its kind. Some problems lie, however, in the teleology, optimism, and undemonstrable assumptions that mark the genre to which it belongs—that is, the literary form that John Rao irreverently calls “founderology.” Forewarned, we know how things must unfold: zealous, gifted statesmen with a superior Continental Vision struggled against “provincial” stupidity, “power,” and “interest.” Anti-constitutional skeptics acted out of “fear” or “old republicanism,” while nationalists acted (mostly) out of reasonable concerns and timely ideas, and with an eye to economic growth.

Much like his “plain, honest” founders, Beeman (professor of history at the University of Pennsylvania) frequently invokes “THE people” and the sovereignty residing in them. Without further analysis the second notion seems of no more use than Cuba’s “ultimate sovereignty” over Guantánamo Bay. As for “THE people,” one thinks of historian Edmund Morgan’s claim that founder-in-chief James Madison “invented” the (singular) American people. This is true enough in a way but raises the question whether Madison had any business doing so. Nationalists apparently conceived the People—not yet fully existing as one—as prime matter needing the form the framers wished to supply. The whole business confuses words, relations, and things, reverses itself as needed, and ends with nationalist ideology taking the board.

Elsewhere, Beeman is realistic about the clauses counting three-fifths of slaves in figuring representation in the House and forbidding Congress to end imports of slaves before 1808. The latter provision was cold-bloodedly traded for allowing Congress to pass navigation acts by ordinary majorities. Despite later complaints in New England (whose intellectuals—different ones—invented both abolitionism and the pro-slavery ideology), there was no chance that the Convention would address slavery in ways that would please modern people.

Beeman stresses turning points in the Convention but also misses some. One he misses is Hamilton’s defense on June 19, 1787, of the Convention’s right to violate the representatives’ instructions in such a great emergency (see Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of the American States, 1927, 776ff., which, if nothing else, foretells his later construction of such constitutional mysteries as the Necessary and Proper clause.) Beeman also overlooks the creative writing of Gouverneur Morris (the biggest wheel on the Committee of Style), who later admitted working his own ideas into Article III on the judiciary (see Wythe Holt, “The First Federal Question Case,” Law and History Review, 1985, 187-189). If committee men could amend the draft, why debate and vote on the details?

Throughout, Beeman slides past conceptual traps like divided sovereignty, only to concede their problematic character in the last several chapters. See, for example, his discussion of the preamble—as improved by Morris—where dropping the names of the states (just after “We the People”) “seemed to suggest that the people of the nation possessed that sovereign power” claimed by the states. Yet Beeman clearly sees that changes in already ambiguous language may not entirely resolve things.

Beeman skirts some telling remarks made in the Convention. The “intemperateness” of Martin, Lansing, Paterson, Bedford, Gerry, and Mason seems insufficient ground for dismissing as mere provincial error the serious questions those critics raised. “Mason railed against the separate existence of a ‘federal territory’ predicting that it would become a ‘sanctuary of the blackest crimes.’” Surely not!

I will now add my two cents. On June 9, 1787, William Paterson of New Jersey observed, “We are met here as the representatives of 13 independent, sovereign states, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our States who have sent us here for other purposes?” Well, could they? Hamilton’s integral nationalism, Madison’s incoherent divided sovereignty, and John Taylor of Caroline’s anti-Federalist (that is, anti-nationalist) republicanism have given answers. We are overrun with “original intentions” and interpretations of them. Still, it may be that continued (and peaceful) relations among 13 concrete political societies did not require nearly as much structure as certain framers hoped to supply. If so, Taylor may yet have the last laugh.

Born in Schwarmstedt in northern Germany in 1899, Röpke came from a family of Lutheran ministers and medical doctors. After his time in World War I he studied law and economics and embarked on a career as an academic economist. A firm opponent of National Socialism, Röpke was forced to “retire” in late 1933 and left Germany. He taught briefly in Turkey before settling permanently in Switzerland, whose tough and sturdy bourgeoisie he came to admire.

The intellectual historian Razeen Sally notes that Röpke produced around 900 publications. His books include Economics of the Free Society (1937, 1963), International Economic Disintegration (1942), The Solution of the German Problem (1946), Civitas Humana (1948), The Social Crisis of Our Time (1950), International Order and Economic Integration (1959), and A Humane Economy (1960; see The Freeman’s review here). In Germany, the Röpke Stiftung (Institute) keeps alive his work and memory.

Röpke was closely identified with Germany’s “Neo-Liberals” (or “Ordo liberals”), who included Walter Eucken, Alexander Rüstow, Alfred Müller-Armack, and Ludwig Erhard. Writing in the aftermath of Weimar and National Socialism, these men wanted competition and free price movement ensured by a strong State (more on this shortly). Favoring a social-market economy, they served as architects of the West German economic “miracle.” While Anglo-American liberals claimed to be aggregating and balancing interests, German Neo-Liberals wanted an honest (and rather rational Hegelian) civil service to establish and preserve free competition. Seeing “planless” State intervention in aid of organized interests as the key problem, Neo-Liberals wished to block the influence of private “social power” over State policy and foster the common good.

For conservative economist William Campbell, Röpke was a Protestant thinker in the line of Erasmus and Grotius, despite his adoption of the Catholic principle of subsidiarity. His work displayed distributist and radical Jeffersonian themes along with a dislike of entrenched aristocracies, and he distrusted what Campbell called “scientistic approaches to the production process,” such as Taylorism.

Röpke’s work in technical economics bore considerable resemblance to that of the Austrian school. Believing strongly in the market mechanism and free price movement, Röpke was nevertheless quite critical of modern business practices, corporations, advertising, and more. As he wrote in 1958, “[A]ctually existing forms of market economy . . . are a far cry from the assumptions of theory.” Social conditions shape outcomes “beyond supply and demand.” In 1929-30 Röpke argued that once a depression is under way, modest “reflation” to stimulate new demand may be called for. This argument for compensatory credit expansion can hardly be rejected out of hand—despite a partial agreement with Keynes—and a number of Austrian economists have taken a similar position. (Certainly he later rejected Keynesian methods as a normal part of State fiscal policy.)

One of Röpke’s central concerns was restoration of the world market crippled by World War I. Economically the world before 1914 had been “virtually a unit.” Customs duties were “merely data,” and there were no “raw materials” problems. The “gold standard was a working fiction of a real ‘world money’” with London at its center. In its heyday this order had promoted social and international peace. Pre-war protectionism had, however, fostered domestic monopoly, but Röpke lost little sleep over the modest tariffs of a bygone age. Instead, it was heavy State involvement in national economies (national corporatism) during World War I and between the world wars that concerned him.

The old trading system had not been a self-sustaining natural order but had had an “extra-economic . . . framework of moral, political, legal and institutional conditions.” Röpke’s views on international trade—“liberalism from below” by agreement of independent nations—appear to conflict with the current American top-down globalization model, even if Röpke showed some affection for the Pax Britannica. Under reasonably free trade there would be no special problems of “raw materials” and “living space,” and business as such was not the source of imperialism. Instead, States were the key promoters of monopoly, and if monopoly led to empire, State policy remained the most important cause.

While opposed to national corporatism, Röpke was perhaps insufficiently critical of the post-1945 (and U.S.-led) multilateral corporatism (“embedded liberalism”) of GATT and the ITO. On the other hand, he criticized exported U.S. inflation from the late 1950s onward and generally frowned on the top-down economic management of the Common Market, ancestor of the European Union.

Reflecting in 1946 on the disastrous course of German history in his Solution of the German Problem, Röpke applied his historical and economic ideas to the renewal of German political and economic life. As he saw it, a proper federal equilibrium had never existed in Germany. In late-medieval and early modern times, communal (town-based) decentralization succumbed to powerful feudal magnates making the transition to absolutism and bureaucratic management (“state feudalism”). On the land in western Germany free peasants emerged; to the east in Prussia “feudal” magnates successfully suppressed the peasantry. This dualism of agrarian structure persisted into recent times. Prussia’s underdeveloped cities posed no counterweight to the East-Elbian landed aristocracy (Junkers), and the factory-like Prussian state made society rational, mechanical, and clock-bound—whence inhuman Kantian “ethics” and the Prussian “cult of the colossal.”

German unification had been less organic than that of Italy. The new central state (from 1871) dominated by Prussia adopted elements of economic liberalism and abandoned them as needed. Here was a top-down social revolution involving proletarianization, population increase, mass conscription, State education, and the rise of atomized mass society. Subsidized, cartelized, hierarchical, and centralized as it was, German capitalism was “the prototype of monopoly-and-proletariat capitalism . . . of rigidly organized industry” looking toward “organized socialism” (italics in original).

The ideal political revolution would have constrained Prussian domination, while the ideal “economic and social revolution” would have required “agrarian reform breaking up the great estates and putting peasant farms in their place,” and tariff abolition to undermine industrial cartels. Interestingly, important Social Democrats opposed agrarian reform as necessarily backward and unprogressive.

Now—in 1946—something positive could be done about German agrarian and industrial “feudalism” and their attendant evils. Ideally, a new German revolution—sponsored by the Allies—would dissolve Bismarck’s imperial edifice in favor of the Länder (states). Local administration had survived the collapse of the National Socialist state, and the Allies could revive the constituent German states by negotiating a separate peace with each one, effectively dissolving the Reich. The Allies, Röpke thought, should also enforce “complete free trade, external and internal, for all these German states” to assure German economic viability in spite of political decentralization, thereby preventing the persistent poverty envisioned in the punitive Morgenthau Plan. Allied-enforced free trade would undermine the old order of cartels. As to Germany’s new political structure, a working compromise between a Staatenbund (confederacy) and a Bundesstaat (federal state—in the unfortunate American sense) would be required.

Röpke’s treatment of the German case reflected a broad historical vision. He spied a “plutocratic taint” in early capitalism and wrote that historical (and actually existing) capitalism featured “monopolies, mammoth industries, stock corporations, holding companies, mass production, proletariat,” and was thus “very misshapen” indeed. (This line of analysis parallels that of Franz Oppenheimer, who was a direct influence on Albert Jay Nock, Rüstow, and Röpke.)

The “feudal-absolutist heritage” resulted in “immense accretions of capital and economic positions of power which endow capitalism with that plutocratic taint which clings to it”—giving it “a false start from the very beginning.” But “violent contrasts between rich and poor, between power and impotence, are rather due to extra-economic (‘sociological’) positions of power” such as “feudal land holding . . . profits from the slave trade . . . war and speculative profits . . . pirates’ and soldiers’ booty, monopoly, concessions granted in the age of absolutism, plantation dividends, and railroad subsidies.” Such things were the basis of later “development.” Some were now gone; some, like “feudal mining properties,” lingered as “strongholds of robber barons. . . .” Thence came the odium unjustly extended to all market activity. As for that emblematic nineteenth-century investment—railroads—they had been premature and inflationary.

Consistent with this approach, Röpke found mass society and proletarianization central to the twentieth-century crisis. And where had proletarians come from? His answer: Political power made them, even if their numbers (population) increased later. In both eastern Germany and England (especially in the seventeenth and eighteenth centuries) dispossession of peasants created a reservoir of cheap industrial labor. In Röpke’s opinion, Capitalism and the Historians (1954), a book on the Industrial Revolution edited by Hayek, swung “too far the other way,” but could not dispose of proletarians—whatever their caloric intake may have been—and the social “catastrophe” that came with them.

Such phenomena had feudal-absolutist causes in Europe—but why then did we see much the same results in the United States? Here Röpke refers to Oppenheimer’s “political means” to wealth. The State, whether feudal-absolutist or not, made possible interest-group politics, and American democracy had long allowed “vested interests to flourish unchecked.” Indeed, the interpenetration of interests and bureaucracies “has probably reached its highest degree in the United States”! For Röpke the underlying cause of the evil was “the division of labor, pushed to extremes, and interlocking everything in the most complicated manner”—an unnecessary result since division of labor could in fact be “more humane and natural, and less mechanical and proletarian.”

Röpke announced his “Third Way” revisionist liberalism as early as 1941 in the Swiss Journal of Economics and Statistics, calling for the restoration of competitive markets and distinguishing good economic intervention from bad. He contrasted the industrial division of labor—within a firm or factory—with the social division of labor in which markets coordinate “activities of independent units.” Real, functional independence was what distinguished market economies from socialism, while excessive division of labor led “increasingly to mechanization [and] monotonous uniformity.” The obvious antidote for Röpke was widespread ownership of productive assets: deproletarianization through small property. Where possible, the realm of self-provision outside the market should be expanded and competition enforced.

On Röpke’s rather institutionalist view, State and economy are not and cannot be entirely separated except for purposes of analysis. As noted, he—like other German Neo-Liberals—saw interest-group liberalism as false pluralism: “Unhealthy pluralism . . . is not defensive but offensive. It does not limit the power of the state but tries to use it for its own purposes and make it subservient to these purposes.” Here then is a kind of socially conscious liberal cameralism as opposed to corporate syndicalism.

The false or unhealthy market economy rested on “legal forms and institutions”—“stock companies, the corporation, patent law, bankruptcy,” trusts, and so on, supported by legislation. Indeed, “the growth of the corporation with its much discussed but unfortunately too seldom remedied abuses has led more and more to the assumption of risk by the community.” The State’s job was to defend competition and refrain from favoring monopoly.

Röpke favored free movement of prices rather than a command economy, but insisted on a suitable legal-social framework, in stark contrast to the kind of liberal who imagines that private property and free price movement themselves constitute a social order. To achieve such fit legal foundations, Röpke suggested the need to overhaul laws dealing with bankruptcy, corporations, patents, money and banking, and antitrust. He saw economic concentration as being in particular the product of company law and tax policy. The low birthrate of new firms (as of 1960) surely reflected “something fundamentally wrong with the capital market and the tax system.”

For Röpke the best counterweight to the State was “the minimum economic independence for the individual which in turn is based on a minimum amount of property, economic freedom and security of existence.” Only a market economy could produce favorable outcomes—but what kind of market economy? Real independence was “jeopardized by proletarianisation, by concentration of private economic power, by increasing organization and monopoly, by cartels and associations, by agglomerations of financial interests, by corporativism, by the private planning of vested interests, in short by ‘business collectivism’”—which resembled (at best) a kind of feudal-authoritarian decentralization. The market required mutual trust, long-run legal stability, an ethic, as well as “certain psychological-moral reserves.” The economy was not “an autonomous sphere of rational behavior,” and philosopher Max Scheler (an important influence on Pope John Paul II) had shown that “contractual cooperation of men . . . cannot work without genuine communities.”

Röpke insisted that free markets require a moral framework outside themselves in order to work optimally. The market is only defensible “as part of a wider general order encompassing ethics, law, the natural conditions of life and happiness, the state, politics, and power.”

Röpke could perhaps be seen as wanting precisely the combination of “free market and strong State” some writers associate with Margaret Thatcher and Ronald Reagan. But in that model (also called “neo-liberal”) the strong State pursues a two-pronged strategy of “starving” the welfare beast while feeding the military-industrial one—the latter being (beyond controversy) a great den of special interests. Empirically, then, it appears that the Thatcher-Reagan regimes involved the triumph of new political coalitions working—free-market rhetoric notwithstanding—wholly within the logic of interest-group liberalism. (Financial magicians might also be mentioned.)

In Röpke’s Neo-Liberalism the State is “strong” in an ethical and not just a structural sense and is therefore able to resist special-interest pressures, whatever their ideological coloration. It is of course nearly impossible for Americans to believe that a neutral and ethical civil service can exist (or ever has existed) anywhere. But as John Taylor of Caroline, Hans-Hermann Hoppe, and Röpke have suggested, republican forms of government are the special prey of well-organized, rent-seeking interests.

Liberal and Libertarian Constructs

But, alas, Röpke frequently mentioned “regulation” and even “planning.” Here acquired reflexes will inevitably kick in, with sundry classical liberals shouting “statism” in a crowded tea party. But does Röpke’s model really differ so much from certain liberal-to-libertarian constructs? Let us consider some of those. In the educational model associated with F. A. Hayek, dedicated scholars put in decades of work, eventually turning the tide of public opinion, whereupon the State relents and gives us free markets. This plan is as old as the Physiocrats’ idea of persuading an absolute monarch to impose their vision of free internal markets on all of France. A good idea, no doubt, but it was the State that would do the imposing.

Next comes the model in which a libertarian legal code solves all our problems. All we need do is have a revolution of some sort. In one variant a kind of Patriot King will rally the masses behind a right-wing populist agenda. This “libertarian” man on horseback will then dismantle the State and give up his own (State-like?) power when his State-smashing frenzy is over. The law code being in place, we are asked to believe that thenceforward individual contracts undertaken in a complete ethical vacuum will constitute society.

(This version does not have probable success written all over it.)

So here we arrive at some common paradoxes of libertarian policy-making. Everyone concerned wants a government of laws and not of men, but this unlikely outcome demands some automatic mechanism to replace the fallible men. Have we ever seen such a mechanism? In practice it seems, everyone wants the State, or some suitably stateless-looking substitute for the State, to impose his or her program. On balance, Röpke’s ideal of a genuinely neutral and ethical civil service with a limited agenda subordinated to the common good does not seem more utopian than the proposals just sketched.

Institutions and Culture

Röpke’s Third Way, with its revision of liberalism and its slight tilt toward distributism and agrarianism, has the virtue of foregrounding issues of economic sociology, institutions, and culture, which everyday classical liberalism and libertarianism contrive to ignore. His specific insights and themes—however radical-reactionary and Romantic they may seem—ought to be of interest to all who see a need to combine the insight that markets are very useful with “thicker” social theory able to take account of community, shared values, and nonmaterial interests. Front Porch communitarians, “civic republicans,” left libertarians, conservatives, and many others might do well to revisit Röpke from time to time.

Perhaps Röpke was mistaken in thinking that, absent his ideal ethical and neutral State, people surrounded by “thin” markets could not generate essential “thick” (intermediate) social-cultural relationships. If he was wrong, then arguably it is naturally generated thick libertarianism that would in fact be the true Third Way. Röpke’s own experience, however, convinced him that non-neutral States and capitalism (in a negative sense here), working in tandem, had done so much damage (as in Germany)—and for so long—that it would be idle to rely on society to reconstitute itself in the short run.

These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency . . .”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

Gradualism and crisis, always headed the same way, have yielded a constitutional trail of tears catalogued in American state and federal case law. The U.S. Supreme Court hardly noticed the Fourth Amendment until the twentieth century. In the Prohibition-era case Carroll v. U.S. (1925), the Court sanctioned searches of private automobiles on the rather forced analogy of ships at sea. (The next time cops pull you over and search your car, you may blame Chief Justice William Howard Taft.) But the amendment’s core meaning survived awhile longer in areas where it was thought to have always applied.

Meanwhile, emboldened by the Fourteenth Amendment, the Supreme Court undertook to supervise state police practices from the late 1940s on; it would decide if the states were following the Fourth and other amendments. This new project annoyed the states but did little enough for the public. Examining federal search practices in U.S. v. Rabinowitz (1950), the Court declared the word “unreasonable” the key to the Fourth Amendment. Henceforth the Court would philosophize on the “reasonableness” of searches (“in the circumstances”) and periodically announce our ever-waxing-and-waning rights on the accordion model of civil liberties. Warrants pretty much disappeared.

We have been saddled with this unsatisfactory outcome ever since. The subjectivity of judicial balancing acts, along with fluctuating judicial moods, has made the Court’s understanding of “reasonable” rather less stable than that of the Oxford English Dictionary. The war on drugs has rendered the Court (particularly “conservative” justices) unsympathetic to complaints about searches. The upshot is that the Fourth Amendment is now mostly just another empty marker at which American politicians, bureaucrats, and ideologues can wave when praising the precious freedoms that supposedly cause Americans to be hated.

Legal History vs. Politicized Originalism

In constructing the above account, I have relied heavily on the work of Thomas Y. Davies, professor of law at the University of Tennessee. (The rhetoric is mine.) In essays running from 1999 to 2007 Davies painstakingly reconstructed the late eighteenth-century context of the Fourth Amendment, accounted for its later reinterpretation, and thus described its effective demise. At the same time, he assessed conservative constitutional “originalism,” which he finds harmful.

For Davies the key to Fourth Amendment mysteries is the displacement of eighteenth-century common-law rules by later legal tinkering. As “judge-discovered” law, common law constituted a whole system (albeit uncodified) able to address almost any issue that could get into court, naturally or under a legal fiction. It centered on private prosecutions between parties, who were often large landholders, and its rules aimed at protecting their rights and “quiet enjoyment” of their property. (The radical historian Barrington Moore, Jr., has noted the aristocratic origins of our civil liberties.)

Of course common law adopted, or was forced to adopt, a number of royalist and Parliamentary premises perhaps not essential to its workings, in such matters of State concern as sovereignty, treason, customs, and revenue. Given its environment, common law also incorporated social prejudices regarding women, employees (“servants”), and other disfavored classes, and remained mired in semi-feudal verbiage. Common lawyers worked new content into their “feudal” categories in a way that eased the transition from “feudalism” (for lack of a better term) to English agrarian capitalism and from one form of State to another. In the hands of Whig justices like Sir Edward Coke (1552–1634), locked in battle against Stuart royal prerogative, the common law became a potential weapon for individual and popular rights against State abuses. Coke’s views were very influential in revolutionary America.

In the nineteenth century, though, the common law came to be seen as a barrier both to industrial capitalism and to further expansion of the modern state; for these and other reasons it was interpreted into nothingness or quietly abandoned.

Common-Law Arrest, Search, and Seizure

With common-law rules in view, Davies sees the whole point of the Fourth Amendment as control of warrants to be achieved by defining them strictly. In the common-law environment of the late eighteenth century, warrantless searches—or arrests—were rare and subject to strict conditions. Thus confined, these few warrantless actions hardly threatened public liberty. Let us see why.

First of all, no one—constable or freeman—could arrest or search someone merely for looking “suspicious.” Accusers (public or private) had to have a case before applying for any kind of warrant. To have a case, an actual crime had to have been committed already. An accusation also had to include sworn testimony of one or more witnesses asserting direct, personal knowledge supporting the belief that a named defendant had done the deed. Strung-out informants selling hearsay “evidence” about crimes that might occur in the future were not consulted, although hearsay could be admitted to establish background facts. Judicial action—indictment, issue of warrants—rested on the kinds of evidence described above. Arrest warrants did not normally issue for misdemeanors. The defendant remained at large but would be wise to attend his trial. A search warrant gave permission to look only for the specific things named.

Further, a defendant never appeared as a witness, but could, with or without counsel, impeach the evidence against him and cross-examine witnesses. Accordingly, the rule against self-accusation (self-incrimination) did not protect a defendant’s trial rights, but meant instead that his diary, calendar, papers, and effects—as extensions of himself—were not subject to general ransacking and fishing expeditions. The other side had to make its case without such modern conveniences. Only Parliament claimed to be able to license fishing expeditions (such as the “general warrants” that so nettled colonial Americans) and mainly in the narrow areas of “treason,” customs, and revenue. (The last two items came under admiralty law with its civil [Roman] law rules.) The Fourth Amendment sought to limit the ability of Congress to play such games.

There was a short list of warrantless arrests and searches allowed under common law. An officer or freeman who saw a misdemeanor underway in his presence (affray or breach of the peace) could make an arrest. Someone traveling at night could be detained overnight to account for himself. In “hot pursuit” of a fleeing felon who had committed an actual crime, an officer or freeman could “break” (into) a house. Here again is the combination of actual crime and personal knowledge. There were a few other complications, but they and the above-mentioned practices were rooted in common sense and had definite boundaries.

Under common-law rules arrests were few and far between. In a system based on enforcement by private parties (freemen), or by constables with few additional powers, defendants could sue for “personal trespass” anyone who brought a bad prosecution. Logically enough, a right to resist false arrest also existed. (Nowadays the concept of false arrest is nearly dead and resistance is not generally recommended.) Damages for bad prosecutions were a useful incentive for keeping peace officers and private prosecutors reasonably careful. Tightly drawn warrants, where required, actually protected officers from resistance or suit.

Since arrests were few and generally followed indictment—and that on real evidence—defendants not formally accused were seldom detained. Hence modern dilemmas involving interrogation seldom arose. Asking questions was a judicial function carried out at trial. Constables, who were considered judicial (not executive) officers, had little discretionary authority and few occasions for third-degree Q&A sessions in the back room. And of course common law had no plea bargaining, that ubiquitous, contemporary solution of “overworked” courts that Paul Craig Roberts and Lawrence M. Stratton refer to as a form of torture.

In the United States, federalism set further limits. Only a few matters fell under federal jurisdiction, fewer still under exclusive federal jurisdiction. At the state level special language in revolutionary-era state constitutions about the “law of the land” or “due process of law”—“terms of art”—protected and perhaps “constitutionalized” common-law rules of arrest, search, and seizure. (“Due course of law” referred to trial procedures.) At the federal level specific constitutional language in the Fourth and Fifth Amendments and elsewhere served a similar purpose. And in practice America avoided what Jeffersonians most feared: a federal claim to enforce the whole common law, which potentially reached everything under the sun. The objects of federal action were limited in number, and the claim of extreme federalists to general common-law jurisdiction failed. But the common-law rules (“due process,” “law of the land”) seemed well entrenched at both levels of government. Could courts and legislatures legally (“constitutionally”) throw away these protections? It is hard to say what informed legal opinion would have said on this point in 1790. Later, of course, courts and legislatures contrived to do exactly that.

Rise and Fall of the Fourth Amendment

The framers’ quest to establish certain common-law rights largely failed. The disjunction between the clauses of the Fourth Amendment encouraged the leap to a “reasonableness” standard. In fact, as Davies shows, the words “unreasonable searches and seizures” were Revolutionary-era rhetoric condemning British general warrants of the 1760s and 1770s as without reason (outside of reason) and therefore illegal and unconstitutional; they were not meant to license future judicial speculation. The core ideas of the Fourth Amendment were better expressed in the Massachusetts Constitution of 1780 and the Ohio Constitution of 1802. Davies speculates that James Madison’s innovative phrase, “probable cause,” was meant to allow a little leeway for customs and revenue enforcement, which already enjoyed partial exemption from common-law rules. (A warehouse, for example, did not enjoy the same immunities from search and seizure as a private dwelling.) Still, even Madison’s slightly weakened version meant something, although “probable cause” (taken by itself) had a big future as a means of reducing restrictions on power to a nullity.

In Davies’s view the Fourth Amendment unraveled for several reasons. Judicial and legislative amnesia undercut the common-law rules. With growing industrialization, capitalists feared workers, Protestants feared Irish immigrants, and most people feared property crime more than they feared the State. To allay these fears and address some genuine problems caused by overcrowding, urban elites created police forces in major American cities by the 1830s. In eighteenth-century terms these new bodies were “standing armies.” Their practices brought about pressure for revised rules of arrest, search, and seizure, and new rules encouraged the new police practices. Davies speculates that the rise of “relativistic and probabilistic notions of truth and proof,” diminished reliance on oaths, and fear of too few convictions also eroded the old common-law regime.

Finally, state and federal courts rather forcibly dragged “due process” into property law—rather notoriously in Dred Scott (1857), with its substantive due process for slaveholders—with a little left over for trial procedures. “Due process” of arrest, search, and seizure receded into the shadows. In search of improved ideas, American state courts looked to Britain, where since 1780 judges had been adjusting the rules in favor of industrialism and modern State practices. (Right-wing commentators who gripe about “foreign law” influences ought to investigate this connection.) For once the federal government was fairly innocent. Precedents that undermined the old common-law regime largely trickled up from the states, especially in the second half of the nineteenth century. The upward trickle was slow at first: Down to 1935 federal marshals still had to have proper warrants to make an arrest.

Here then is today’s Fourth Amendment as seen by a life-form afflicted with supreme-judicial eye syndrome:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(As this ocular condition worsens, all but a few objects dwindle into dim grayness.)

On Davies’s argument the view that the Fourth Amendment came into its own from the mid-twentieth century forward, when reasonableness took center stage, puts the cart well before the horse. And yet the Fourth Amendment cannot really be recovered. This is where good legal history—concrete originalism—leaves us. Potentially beneficial constitutional provisions are of little use today, even when their meanings can be reconstructed in legal-historical context. We can’t go back, since “activist” judges and legislators have worked for almost 200 years to institutionalize a legal regime with only slight resemblance to any original plan.

Can Anything Be Done?

Oddly enough, nineteenth-century Anglo-American legal bragging about freedom crested at roughly the time when many common-law rules worth saving were on the way out. Common law had reactionary social biases, to be sure, but an accelerated “trickle-down”—to everyone—of important rights that common law protected might have been preferable to their elimination. Purging common law of its English royalist and absolutist accretions was precisely the goal of St. George Tucker’s annotated edition of Blackstone (1803). And there was no reason to stop with Tucker’s “republicanized” Blackstone. More right than wrong on this, Murray Rothbard wrote that the common law minus some “statist accretions” fairly approximated a libertarian law code. Thinkers outside the mainstream periodically rediscover the radical potential of English law: people like Gerrard Winstanley, John Lilburne, John Adams, Thomas Jefferson, Lysander Spooner, and others closer to our own time. They may not agree with one another, but their example is interesting.

This is the path not taken. Most arrests and searches today are without warrant, and getting a formal warrant is fairly easy. Concrete, sworn personal knowledge has yielded to vague (“reasonable”) suspicion or whimsy as a “standard.” Once we enjoyed rules that provided for concrete privacy. By the 1960s privacy seemed so imperiled that the Supreme Court with its usual jobbery was driven to invent an artificial “right of privacy” just to restore some balance. Later, “originalist” conservative justices wrathfully informed us that passage of a law by Congress is nine-tenths of “due process” (you voted, didn’t you?) and the rest is enforcement—stern law-and-order formalism indeed. Translated, conservative “due process” seems to leave us subject to arrest, search, or seizure at the whim of any functionary capable of forming a whim.

Americans have let themselves be systematically excluded from land, from effective political participation, and from effective legal participation. When collapse of the new-model system comes, as one day it must, we may perhaps give ourselves a new constitution. Where might we begin? Chapter XXIX of Magna Carta looks rather promising.

Works Consulted

Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Michigan Law Journal (1999), and “Correcting Search-and-Seizure History: Now-Forgotten Common-Law Arrest Standards” [&c], Mississippi Law Journal (2007). (These two are essential. See also Davies in Wake Forest Law Review (2002), 239ff, Tennessee Law Review (2003), 987ff, Brooklyn Law Review (2005), 105ff, and Brooklyn Law Review (2007), 557ff.)
Morton Horwitz, The Transformation of American Law (1992).
Theodore B. Lacey, “The Supreme Court’s Fluctuating Reaction to National Prohibition in Fourth Amendment Decisions from 1920–1933” (Senior Thesis, Princeton University, 2005).
Roger Roots, “Are Cops Constitutional?” Seton Hall Constitutional Law Journal (2001).
St. George Tucker, “Of the Unwritten, or Common Law of England,” in View of the Constitution of the United States (1999 [1803]), 313–369.
(All the above except Horwitz may be found online.)

And, continues Brooks, it was those the earlier populists attacked who made us what we are. We owe America’s greatness to “anti-populists” like Hamilton and Lincoln, who “rejected [populism’s] zero-sum mentality” and fostered “one interlocking system of labor, trade and investment.” Hamilton promoted financial markets and Lincoln banks to “maximize opportunity for poor boys like themselves,” since strong financial institutions could “channel opportunity to new groups and new people. . . .” Their ideals were “development, mobility and work. . . .”

Here a sidelong glance at two comparable Moments of Progress Unleashed may be in order. Let us begin with the Federalist Party’s role model, Great Britain. In Whigs and Hunters, the English historian E. P. Thompson calls eighteenth-century England a “banana republic,” and adds, “The Whigs, in the 1720s, were a curious junta of political speculators and speculative politicians, stock-jobbers, officers grown fat on Marlborough’s wars, time-serving dependants in the law and the Church, and great landed magnates.”

Everything was fundamentally for sale, even if for social reasons not everyone with money could buy certain of them. With the Hanoverian kings, Thompson wrote in “Eighteenth-century English Society,” came “a new set of courtier-brigands . . . [with] real killings . . . made in the distribution, cornering and sale of goods or raw materials . . . manipulation of credit, and in the seizure of the offices of State”(Journal of Social History, May 1978).

Now let us fast-forward to Mexico, 1880-1910. There, the once-Liberal dictator General Porfirio Díaz, advised by “scientific” Positivists, handed over natural resources wholesale to deserving entrepreneurs foreign and domestic in the name of economic development. If this meant overturning peasant and village land titles and water rights dating back to the Spanish viceroyalty, so be it. In the southern state of Morelos, the defense of small-scale property and social relations called forth the famous peasant movement led by Emiliano Zapata. Some people find such outbursts regrettable, but there is no question of who started it. (John Womack, Jr., Zapata and the Mexican Revolution, 1968, chapters 2 and 3.)

These cases provide rough parallels to what Brooks is offering us: Here, too, were labor, capital, and money intertwined in a system, and (no doubt) growth, mobility, and employment, and even (quite possibly) opportunities for poor boys and sundry new groups. With all of this assisted–and indeed imposed–by the State, and with some folks actually getting “zero,” it is hard to render an unequivocal endorsement. Some of us are past believing that growth itself justifies much of anything. As John Taylor of Caroline asserted, Federalists wanted a complete English political economy in the United States. For good reasons, he did not welcome this prospect. The Whig and Republican parties inherited the Federalist outlook, which sheds much light on their ideas. In this light Brooks’s calls to reinvigorate the Republican mercantilism (“How to Reinvent the G.O.P.,” New York Times Magazine, August 29, 2004) do not seem very benign.

Faced serially with the mercantilist policies of Federalists and Whigs, the Jeffersonian and Jacksonian movements provided opposition. They knew in detail what was at stake. Taylor and his successors like William Leggett and Condy Raguet were their organic intellectuals. They did not buy Hamilton’s or Henry Clay’s ideology of balanced development and national growth. Instead, these insurgent Americans saw national debt, national banking, tariffs, excises, and business subsidies largely at their expense–which, taken together, looked a lot like interests working hard to get vested. (In itself the Common Good is a defensible concept, but see William T. Cavanaugh, “Why the Nation-State Is Not the Keeper of the Common Good,” Modern Theology, April 2004.)

The roots of American populism lie in these two mass movements. To the extent that they acted in self-defense, they can be defended without embarrassment. But Brooks doesn’t even acknowledge their existence; it would spoil his claim that populists always lose. And perhaps he finds them unconstructive.

If we could believe certain theorems about income trickling up or down, we might pay more heed to neo-mercantilist arguments. But the theorems are not especially plausible. We are left with Brooks’s warnings about divisiveness and class conflict. Yet it appears to be a fairly consistent lesson of history that class struggle comes from the top. People at the top–the Federalists in 1787-1789, say–have cohesion, a shared vision of a State they control, and the means to network. They use these to dominate the system. Sometimes by moving too quickly and pushing too hard, they create a unified opposition that did not previously exist. Now they invoke the sacred rights of property (theirs), fulfillment of contracts (held by them), order and deference (to them), and the duty to pay debts (to them), and they denounce their opponents as leveling, agrarian radicals. Quite suddenly they have emerged as honest friends of free markets. Of course if mercantilist special pleading really makes the case for “free” markets, then everything is just fine in a country “built” by Hamilton, Lincoln, and those impeccably “sharp” Union war contractors Jay Cook, Cornelius Vanderbilt, Philip Armour, and J. P. Morgan, along with more recent imitators–and precisely because of that building. Skepticism seems warranted.

Brooks has a point, however: Outright demagoguery will likely fail–for example, the Tea Parties now cynically hijacked by Republicans. Those gatherings suggest how unintelligent populism can serve its ostensible enemies. An intelligent populism rooted in real American traditions might be another matter. Whether such a populism exists or can exist is an open question.

Locke’s fame rests on his Two Treatises of Government. Thanks to Peter Laslett’s introduction (1960), we know Locke wrote his First Treatise answering Sir Robert Filmer’s Patriarcha (1680) at a time when his Second Treatise was well underway. The Second Treatise defended (prospectively) the conservative revolution of 1688. Its argument owed much to a Calvinist political tradition in which certain political authorities oppose other authorities that are breaking the social compact. Seeking to justify government by consent regardless of historical specifics, Locke deployed a version of natural law.

The point of the rights adduced—labor-based property and so on—was to buttress an argument that the king could not (should not) expropriate English gentlemen–a rather meager result, unless of course all their rights eventually “trickle down” to the rest of us. To reach his goal Locke undermined the natural-law assumption that God gave the earth to men “in common.” First, Locke set up each individual as a self-owner, rightfully appropriating natural resources to sustain life. By “mixing” their labor with resources (land), individuals rightfully acquired property, provided enough was left for others: the famous “proviso.” (You could not, for example, grab all the acorns and then leave them to rot.) Next, he introduced money, an “invention” of civilized men, which can accumulate without “spoiling.” A monetized economy overcame the problem of “waste” (spoilage) and allowed men to build large estates through production, exchange, and purchase. The increased productivity of larger estates assured that enough was left for others (provided bare subsistence from wage labor is “enough”). Arguing from economies of scale, Locke built an apology for the land enclosures into his system (not to mention a kind of Lockean multiplier whereby enclosed lands yield 10 times the product of commons). Paying wages made other men’s efforts count as “mine” in appropriating property out of common resources (“The turfs my servant has cut,” and so on).

These market activities precede the creation of states. Since individuals’ personal “execution” of the natural law caused predictable problems, property holders created government through a social contract to provide impartial judicial services and common defense, putting their rights in trust. Accordingly, Locke held that property cannot (normally) be alienated even by conquest. Locke’s applied system was less obviously liberal. From the theoretical high ground we suddenly descend to actual English property holdings in the late seventeenth century, with Locke pretending they rest on individual labor and free exchange rather than on conquest and expropriation.

So far Locke appears to be an advanced Whig and founder of liberalism with a nice rationale for infrequent and minimally disruptive uprisings by a consensus of great landholders, gentry, merchant capitalists, and bankers, duly supported by respectable tradesmen, shopkeepers, and farmers who survived enclosure. These are “the people,” moderately and prudently redressing their grievances, even if (as Christopher Hill notes) Locke never actually defined who “the people” are. Americans took Locke fairly literally during our Revolution, and as a result his ideas sometimes seem the only American political tradition, as Louis Hartz complained.

Locke’s Problems

Since at least the eighteenth century, frustrated readers of Locke have “corrected” his system to purge it of apparently foreign elements. Some take Lockean rights as a starting point and move on (see Robert Nozick); others reject Locke’s system while extracting congenial points from it (Murray Rothbard). Truncated or not, Locke has left us some serious problems.

Social Contract. Whether seen as historical possibility or useful fiction, the social contract was always nebulous. The key perhaps was that something like a social contract “must have” happened, otherwise governments would not rest on voluntary consent. Further deductions from that premise would grind to a halt. Deductions were saved, but at a considerable cost in realism.

Mercantilism and Colonial Empire. As a political associate of the First Earl of Shaftesbury, Locke had access to the highest Whig circles. He was both a policymaker and theorist, serving as secretary to the Lords Proprietors of Carolina from 1668 to 1675 and writing (presumably with Shaftesbury) that peculiar neofeudal document Fundamental Constitutions of Carolina in 1669. He was a substantial stockholder in the slave-trading Royal African Company, and in 1696 we find him serving at the Board of Trade.

No stranger to mercantilism and colonial imperialism, Locke nevertheless argued that land is not rightly acquired by conquest unless it has been lying idle. This exception is extremely important, since Locke artfully fitted his “natural” right to property to English Protestant practices. Non-Europeans need not apply. Locke conceded that God had given land to mankind in common. On the other hand, the “industrious and rational” can—indeed must—prevent its being “wasted.” They can “mix” their labor with land to acquire it but must maximize the product. Anyone failing to maximize could rightfully be dispossessed—Indians in America, non-enclosing peasants at home. In effect, Locke promoted freedom for a minority of industrious Englishmen—a freedom to be paid for through constant growth premised in part on overseas empire. Like his successor Adam Smith, Locke favored relaxing the rules “within one part of the system” (as William Appleman Williams put it), which otherwise continued to require overseas expansion.

Locke and Slavery. For Locke slavery arises in a sort of social-theoretical Guantánamo. It was not part of any social contract but arose in “war,” private or public. In Locke’s view anyone who (in a state of nature) attacks another or steals his property “forfeits” all rights and becomes an “unnatural man” subject to death, outlawry, or enslavement in lieu of death. (Paragraph 19 of the Second Treatise wonderfully conflates defense with “war.”) Reject one step here, and the whole thing falls to the ground. (Locke’s reasoning nonetheless seems to inspire those war-prone libertarians who characterize the U.S. government’s enemies of the day as “pirates,” “common enemies of mankind,” and so on.)

This apparent “exception” to liberty hidden inside liberal State theory causes much interpretive anguish. Some writers see Locke as departing here from his real views. Others have him bending his theory to achieve a desired end. Still others believe Locke’s slavery doctrine reveals hidden premises in his system. Given Locke’s investments, it was perhaps convenient that he could accommodate slavery. His moves here involve some of his favorite hobby horses—aggression, forfeiture of rights, and enslavement.

Locke had labored to get around men’s “in-common” right to the earth and thought he had justified English gentlemen’s large estates. Looking abroad, however, he argued that some lands remained common, after all, owing to non-Europeans’ waste (failure to maximize). It seems a fair implication of the text that where such people resist European efforts to develop those “idle resources,” wars with them would be “just” and they might rightfully be enslaved if the conquerors forwent their “right” to kill them. In fairness, Locke never specifically said that “just wars” in West Africa accounted for the current supply of slaves, although Laslett believes Locke rationalized the matter thus.

Bastard Feudalism

Land and State. Why should anyone born after the imaginary social contract obey the current government? Here Locke’s claims about political obligation and consent reach their goal through what I shall call the Law of Conservation of Feudal Assumptions. As George Gale suggests, territoriality was Locke’s key (but hidden) premise: that is, civil society’s (the State’s) sovereign jurisdiction over a given territory to the exclusion of other States. But where has this come from? After adducing so many unlikely natural rights, Locke has suddenly become very conventional.

Now Locke might be describing a mere contract between neighboring property holders establishing a common defense agency (á la Murray Rothbard and Hans-Hermann Hoppe). In time this agency might assert a monopoly over “its” territory (the lands of its principals) and successfully march from Dominant Agency to minimal State (as in Nozick). Now the erstwhile agency would start commanding its former principals. But Locke took a shortcut and tied “Enjoyment of Land” to “a submission to the Government of the Country of which the land is part.” Civil society turns out to have a spatial dimension. All the “voluntary” consent Locke relied on to ground the social contract seems to vanish when he states that no one can withdraw himself and his lands from civil society. No secession here. He can of course emigrate, forfeiting his property.

State ownership of land has arrived, quite unexplained. One wonders what the State has “mixed” its labor with. Perhaps it has mixed its swords and cannon with another State’s soldiers or civilians. In any case, the social contract has somehow “annexed” individuals and their property to the community (State), and State control of land tenure becomes a chief means of enforcing obedience. So much then for all the “natural law” grounding of Locke’s system.

Naturalized immigrants have to pledge express allegiance. Native citizens are bound by the State’s not-so-hidden power to vacate their property titles. Further, the State is free to enclose outliers and renegades (and their lands) politically, without limit—no proviso here about leaving “enough” for others. Actual State practice has supplied Locke’s rules, leaving individual “owners” at the mercy of the State. Now Locke seems about as liberal—or as feudal—as William Blackstone.

Locke meant it when he described the “chief end” of government as “Preservation of Property.” But if the State is in some way the ultimate owner, the chief end now amounts to preserving the government’s claims—suggesting a modernized “bastard” feudalism, that is, feudalism without the advantages of the real thing: decentralization and reciprocal obligations. Like the Common Lawyers, Locke helped bridge the intellectual transition from one form of State to another. Accordingly, his liberalism is not in too much tension with his feudal recommendations for the Carolinas. Longstanding assumptions about (State) superiorities over land persist, while a modernizing State replaces feudal intermediaries.

Executive Liberalism. A closely related theme involves unknowably large emergency powers. Henry Parker, parliamentary propagandist in the Civil War (d. 1652), domesticated Machiavelli’s “reason of state” with all its unknown powers “outside” the law. Hobbes and Locke inherited this principle. Uniting a broad “Federative” (foreign affairs) power with ordinary executive power, Locke extended the executive’s arbitrary wartime capacities into domestic life. (On these matters, see Sheldon Wolin, “Democracy and the Welfare State,” Political Theory, November 1987.)

But Locke hardly bothered grounding this dual-use (“prerogative”) power and merely derived it from what men surrendered on becoming “one Body.” With men’s personal enforcement of the law ceded to the State, the king had a roving, “at-will” commission to do good at home or abroad. The king could suppress customary law to foster increased productivity (and thus greater State revenue) so as to outdistance his foreign rivals. Here is Locke the near-Hobbesian, employed by defenders of Lincoln’s executive dictatorship (“outside” or “beyond” the Constitution) and by latter-day “securitarians,” who dwell on eternally returning emergencies and national survival.

Seventeenth-Century “Natural Law” Swindles

How we got here on the high road of natural rights is an interesting tale. In it Locke is but one of many theorists who packed new content into the old shell of natural law in a kind of seventeenth-century Wrong Turn. The new international lawyers Suarez and Vitoria, seconded by Grotius, Locke, and others, asserted various unlikely “rights” belonging to natural individuals in hypothetical stateless societies. (I rely here on Richard Tuck, Brian Tierney, and Heinrich Rommen, among others.)

There were two jokes here. First, these “rights” derived from the observed behavior of States—such as Locke’s claim that someone has a “right” to kill his defeated enemy out of hand, and therefore may enslave him. Next, the theorists aggregated these State-like “individual rights”—private war-making, private death penalty, private enslavement—and gave them (back) to the State by way of imaginary general consent. Taken seriously, this “consent” bound actual persons even tighter, the gains being therefore rather murky. State practices were now justified by a collectivization of “rights” that individuals never had and which in the genuine, Christian natural-law tradition might never arise. Locke’s generously broad war powers—first private, then governmental—lead away from any serious just war theory toward total war.

These unhappy results hinge crucially on an explicit premise of the seventeenth-century “natural law” writers, namely, that promises must always be kept. (Hobbes claimed that even promises made under duress were valid; Locke disagreed.) “Will,” once expressed, supposedly provides full justification for both a contract and its enforcement. Skepticism seems warranted, especially regarding fictitious “contracts.” Justification, if we find it, will probably not be in some bare union of “wills” and nothing further.

The Devious Locke?

C. B. Macpherson remarked on the common “underestimate” of how much Locke subjected individuals to political power. He wondered why Locke’s landowner-State should have any jurisdiction over rural and town proletarians. The analogy that came to his mind involved merchant companies chartered by the king and empowered by sovereign bluster to use native labor (or imported slaves)—and land—wherever their enterprises took them. After all, if Locke’s property holders have created a real State—and on Locke’s account they have—they will use it. Once again Locke and imperial practice are not far apart, especially since Locke’s community (State), having eliminated law enforcement by individuals, does everything through legislation or prerogative. Here Locke’s model begins to approach legal positivism.

In Locke’s finished model a majority of qualified property owners controls the State, while the State commands each individually. Once more, property—considered as part of an imposed mechanical order—counts more than specific owners of naturally occurring property. And security of property requires obedience. It is not surprising that Locke took rather little interest in constitutional issues or bills of rights, despite his involvement in Shaftesbury’s revolutionary Whig projects.

It is the contrast with Thomas Hobbes that makes Locke seem a great liberal. True, he does give us some “outs” (very narrow ones), which Hobbes denies us. But with the Whig Oligarchs’ triumph in 1688, Locke’s ideas gave valuable rhetorical cover for newly entrenched interests. Soon enough they shifted over to simple Hobbesian practices buttressed with feudal-statist legalisms. (Enter Blackstone.)

In connecting Locke to colonialism, slavery, and more, the point is not to condemn him but to ask how much we want to owe him. (After all, Hobbes seems a better guide on how States actually operate and on what premises.) Anticipating the Thatcher-Reagan program of “free market and strong State,” Locke wanted an active imperial State, along with liberty for the right sort and their right to revolt if things went sour. The point is not that Locke “failed” to be an anarchist; it is that despite appearances, he did not make a case for genuinely limited government. He would, however, have made a wonderful contemporary Republican politician.

Briefly, UET asserts that a great thing or shapeless blob is granted in Article II: “the executive power.” (We naïve folk thought it just named a job.) Presidential power to remove subordinates (at will) follows directly. “Departmentalism” is another implication. This finds the executive to be a coequal interpreter of the Constitution along with Congress and the Supreme Court. (The states need not apply.)

The authors, both law professors, undertake a Maoist Long March through 43 presidencies, turning up many uses (and abuses) illustrating presidential power. It all amounts to a revealing, power-centric history of the United States. The authors purport to adduce “solid antecedents” for their view, such as James Wilson’s ruminations during the Pennsylvania ratifying convention.

Calabresi and Yoo’s key evaluative tool is how much a given president improved and empowered the mighty office. First up, George Washington supervised, removed, controlled all prosecutions (just like George III), called out militia, and granted pardons. Thomas Jefferson executed an embargo and bought Louisiana. Andrew Jackson was a Bonapartist (my term), who somehow embodied The People. Lincoln deployed, suspended, censored, “repelled” attacks, and invented presidential war powers by wedding the commander-in-chief clause to the “Take Care” clause. In fact, say the authors: “The Civil War was fought over the issue of the president’s authority to take care that the laws be executed in the South.” This is a peculiar focus indeed.

Much later, President McKinley’s foreign policy and war strengthened the office. Teddy Roosevelt had no war but nevertheless issued numerous executive orders to expand the reach of the presidency. Woodrow Wilson, war in hand, did much more. Under Franklin Roosevelt, “power exploded,” as he controlled, executed, and issued innumerable orders. Harry Truman got us into Korea with unitary fervor. When he unitarily seized certain steel mills, the Supreme Court declared that while the president has much unspecified power, it wasn’t quite as much as Truman asserted.

Leading largely by stealth, President Eisenhower removed officials, delegated authority, ordered federal troops into Arkansas, and expanded claims of executive privilege to thwart Senator McCarthy. The ill-starred John Kennedy issued numerous orders and had federal troops invade Mississippi. Lyndon Johnson pushed presidential power well beyond Kennedy, and Nixon stalwartly asserted yet more executive powers. The upward trajectory continued on through Reagan, Clinton, and the Bushes.

Other presidents weigh less in the unitary scale. James Buchanan, the authors’ “worst president,” failed to bring on war and grab power. Andrew Johnson at least defended the office against congressional Radicals. Hoover was only so-so but did much executing of Prohibition and issued the Stimson Doctrine. Even Jimmy Carter, called the “nadir” of executive power, at least ordered the freezing of Iranian assets. They also serve who only keep presidential powers intact. Naturally, this reduces the normal (“historically correct”) charges against them.

War meets with awkward treatment in this book. Popular wars or those too ancient to stir controversy may be mentioned, mostly as an arena for presidential heroics. The Mexican War squeaks by and the “Civil War” and World Wars I and II are noticed. The Spanish-American War gets an allusion. Oddly, the word “Vietnam” hardly intrudes on the discussion of Kennedy, LBJ, and Nixon. Neither would we ever learn here that anything warlike happened under George H. W. Bush or Bill Clinton. After all, an office best suited for getting us into wars might seem less lustrous if all the wars were reckoned in.

Now it comes out that there are two flavors of UET. Our authors only claim that whatever executive powers really exist belong to the president alone. They are quite reasonable and do not believe in certain “inherent” powers that George W. Bush asserted. But with so many undefined and nebulous powers so moderately claimed, how can the “moderate” UE theorists spy the “excessive” ones?

Much like Hobbes’s Leviathan, this is a good book: It shows us what is at stake. Is the case made? Should enemies of the UET concede? It might seem so, but there is a problem. It would be easy enough to write a lengthy work proving that for 200 years prominent American burglars have firmly asserted their “right” to break and enter. This would neither put our minds at rest nor establish the “right.”

So it is with the American executive. This interesting book demonstrates that most American presidents have been unwilling to abide by constitutional limits on their power, but not that their power was meant to be almost limitless.